Judge Andrew Napolitano: Government and the freedom of speech

Madison included the word “the” before “freedom of speech” in order to underscore its natural — not governmental — origins.

So, under the natural law, murder would still be wrong and unlawful, even if the government were to permit itself and others to kill, as, of course, governments have done and continue to do. The opposite of natural law is positivism. It teaches that law is only that which has been written down and ratified by the law giver. Under positivism, there is no natural law restraint upon the government; right and wrong are only and always whatever the government says they are. Under positivism, the answer to our pop quiz is that the freedom of speech would be fair game for the government to abridge.

Yet, today, the government thinks very little of the freedom of speech, even though all in government — from the president on down to a part-time government janitor — have sworn allegiance to the Constitution. Today, even though the First Amendment only verbally addresses Congress, the freedom of speech is protected from all government infringement — whether local, state or federal; whether legislative, executive or judicial.

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